Barber v. Watson

953 S.W.2d 579, 330 Ark. 250, 1997 Ark. LEXIS 575
CourtSupreme Court of Arkansas
DecidedOctober 16, 1997
Docket97-77
StatusPublished
Cited by19 cases

This text of 953 S.W.2d 579 (Barber v. Watson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barber v. Watson, 953 S.W.2d 579, 330 Ark. 250, 1997 Ark. LEXIS 575 (Ark. 1997).

Opinion

Donald L. Corbin, Justice.

Appellants, some seventy residents of two subdivisions in Jonesboro, appeal the judgment of the Craighead County Chancery Court, Western District, denying their request for an injunction to prevent Appellee Mike Watson from constructing multi-family dwellings in one of the subdivisions. Appellants raise three points on appeal, which require us to construe a deed and bills of assurance; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a) (16). We find no error and affirm.

We can discern the following information from the abstract provided. Appellants are owners and residents of thirty-six and one-half lots in Meadow Lark Acres Subdivision (“Meadow Lark”) and twelve lots in Meadow Lark Acres Extended Subdivision (“Meadow Lark Extended”), which are contiguous subdivisions comprised of fifty-two lots and twenty lots, respectively. Appellee is the owner of Lots 1, 2, 3, and 4 of Block H in Meadow Lark Extended. Meadow Lark was established and a bill of assurance was executed on November 15, 1967. Meadow Lark Extended was established and a bill of assurance was executed on November 18, 1968. The original bill of assurance for Meadow Lark Extended prohibited the construction of any building other than single-family dwellings except on certain lots, including the four lots owned by AppeEee. On those excepted lots, the biE of assurance provided that apartments may be constructed with the approval of the developers. An amended biE of assurance for Meadow Lark Extended was executed on August 18, 1995, prohibiting any construction of apartment buEdings in Meadow Lark Extended. The amended biE of assurance was signed by owners of lots in both subdivisions.

AppeEants fEed this suit seeking an injunction from the chancery court prohibiting AppeEee’s planned construction of two additional apartment units on an already existing fourplex situated on one of his lots in Meadow Lark Extended. AppeEants claimed that the area was not equipped to handle the increased traffic, that AppeEee’s plan violated aE the biEs of assurance, and that the use of the land for apartments would materiaEy and substantiaEy lessen the use and enjoyment of AppeEants’ property, thus constituting a nuisance.

AppeEee fEed a motion to dismiss the complaint on the grounds that some of the plaintiffs lacked standing to bring the action because they did not Eve in or own property in Meadow Lark Extended, and that pursuant to ARCP Rule 12(b)(6), the complaint faded to state facts upon which relief could be granted. A hearing was conducted on the matter on July 9, 1996. A letter order was subsequently entered by the chanceEor granting Appellee’s motion to dismiss. On the issue of standing, the chanceEor agreed with AppeEee that those plaintiffs who lived in or owned property in Meadow Lark had no standing to chaEenge any proposed construction in Meadow Lark Extended. The chanceEor did find, however, that the amended biE of assurance had been signed by a majority of the lot owners of Meadow Lark Extended. Notwithstanding that finding, the chanceEor concluded that the amended biE of assurance was not valid because it had not been timely executed in accordance with the procedure set out in the original biE of assurance. AppeEants now assert that the chancellor’s findings and conclusions were erroneous. We disagree.

We try chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). In order to demonstrate that the chancellor’s ruling was erroneous, Appellants must show that the trial court abused its discretion by making a judgment call that was arbitrary or groundless. Id.

For the first point for reversal, Appellants assert that the trial court erred in finding that the amended bill of assurance was not timely executed. In order for us to determine whether the chancellor correctly interpreted the provisions of the original bill of assurance, we must consider the language of the document. The pertinent provisions, as abstracted, read:

We, W.R. Kitterman and Esther Lea Kitterman, his wife, Alton D. Holmes and Maralyn Holmes, his wife, and B. Frank Hyneman and Marzee Ann Hyneman, his wife, are the owners of the property that we plat and designate as Meadow Lark Acres Extended Subdivision to Craighead County, Arkansas. No lots shall be used except for residential purposes and no building shall be erected other than a single-family dwelling except that a duplex dwelling may be permitted under certain restrictions and apartment buildings shall be permitted on Lots 1, 2, 3, and 4 of Block H of the subdivision, and certain other lots, with the approval of the developers herein. The covenants and the restrictions of the Bill of Assurance shall be binding for a period of 25 years from the date of recording, after which time the covenants and restrictions shall be automatically extended for successive periods of ten years unless an instrument signed by a majority of the owners has been recorded agreeing to change or to terminate the covenants and restrictions.

The twenty-five-year period provided in the original bill of assurance would have expired in November 1993. The amended bill of assurance was not executed until August 18, 1995. The chancellor concluded that because Appellants had not executed the amended bill of assurance prior to the time the original bill of assurance had expired, the provisions of the original bill of assurance were automatically extended for an additional ten years. The chancellor determined that the proper way to amend or terminate the original bill of assurance was for a majority of the owners to agree and then file the agreement of record to take effect at the time the original bill of assurance expired. Because the amended bill of assurance was not timely filed, the chancellor reasoned, the original bill of assurance, which allowed apartments on certain lots with the developers’ approval, was still in effect at the time Appellants filed their complaint. We conclude the chancellor’s interpretation was correct.

Courts do not favor restrictions upon the use of land; if such restrictions exist, they must be clearly apparent. Holaday, 323 Ark. 522, 920 S.W.2d 4; McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). The general rule governing the interpretation, application, and enforcement of restrictive covenants is the intention of the parties as shown by the covenant. Holaday, 323 Ark. 522, 920 S.W.2d 4. Where, however, the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, so long as the meaning does not defeat the plain and obvious purpose of the restriction. Id. (citing Hays v. Watson, 250 Ark. 589, 466 S.W.2d 272 (1971)). Where no general plan of development exists, restrictive covenants contained in a bill of assurance are not enforceable. McGuire, 297 Ark. 282, 761 S.W.2d 904. Appellants do not challenge that a general plan of development existed in the subdivisions.

In White v.

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Bluebook (online)
953 S.W.2d 579, 330 Ark. 250, 1997 Ark. LEXIS 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barber-v-watson-ark-1997.